Senate Permanent Subcommittee on Investigations v. Carl Ferrer

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 3, 2017 Decided May 16, 2017

No. 16-5232

SENATE PERMANENT SUBCOMMITTEE ON INVESTIGATIONS,

APPELLEE

v.

CARL FERRER,

APPELLANT

Consolidated with 16-5274

Appeals from the United States District Court

for the District of Columbia

(No. 1:16-mc-00621)

Robert Corn-Revere argued the cause for appellant. With

him on the briefs were Ronald G. London, Robert D. Luskin,

Stephen B. Kinnaird, Jamie S. Gardner, Steven R. Ross, and

Stanley M. Brand.

Jessica Ring Amunson and Joshua M. Parker were on the

brief for amici curiae DKT Liberty Project, et al. in support of

appellant.

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Karen A. Chesley and David Boies were on the brief for

amici curiae Legal Momentum, et al. in support of appellee.

Emma J. Llansó was on the brief for amici curiae Center

for Democracy & Technology and Electronic Frontier

Foundation in support of appellant.

Thomas E. Caballero, Assistant Counsel, Office of Senate

Legal Counsel, argued the cause for appellee. With him on the

brief were Patricia Mack Bryan, Senate Legal Counsel,

Morgan J. Frankel, Deputy Senate Legal Counsel, and Grant

R. Vinik, Assistant Senate Legal Counsel.

Before: TATEL, SRINIVASAN and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Carl Ferrer, Chief Executive Officer

of the online advertising website Backpage.com, appeals two

district court orders directing him to produce various

documents in response to a subpoena issued by the Senate

Permanent Subcommittee on Investigations. During the

pendency of this appeal, however, Ferrer turned over some of

the documents, and the Subcommittee completed its

investigation and issued its final report. Given this, and given

that the Subcommittee no longer seeks to enforce the subpoena,

it argues that the case has become moot. Ferrer responds that

the case remains live because, according to him, this court can

order the Subcommittee to return, destroy, or refrain from

publishing the produced documents. We disagree. Because the

relief Ferrer seeks is barred by the separation of powers,

including the Speech or Debate Clause, the case is now moot.

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I.

In the first half of 2015, the Senate Permanent

Subcommittee on Investigations began examining “businesses

that directly or indirectly facilitate criminal sex trafficking

conduct, including trafficking in minors.” S. REP. NO. 114–

214, at 6 (2016). The Subcommittee suspected that online

advertisers were playing a central role in sex trafficking by

“providing . . . easily accessible forum[s] that match[] buyers

of sex with anonymous traffickers selling minors and adults.”

Id. at 3. In particular, the Subcommittee focused on

Backpage.com, a large, classified-advertising website that

allows third-party users to post their own ads. At that time,

Backpage featured, alongside run-of-the-mill categories like

real estate, jobs, and automobiles, a section dedicated to “adult”

services, which contained subcategories ranging from

“escorts” and “body rubs” to “adult jobs.” Subpoena Duces

Tecum of Oct. 1, 2015. Ads in those sections “typically

consist[ed] of a headline, a photo or photos, video, and a brief

description of the services being offered.” S. REP. NO. 114–

214, at 4.

In April 2015, the Subcommittee asked Backpage for an

explanation of its “moderation” procedures, i.e., standards and

policies Backpage says it uses to “screen, block and remove

[user-supplied] ads . . . to guard against any form of human

trafficking or child exploitation.” Letter from Steven R. Ross,

Counsel to Backpage.com to Sens. Portman and McCaskill

(Oct. 23, 2015); see S. REP. NO. 114–214, at 7. Backpage sent

its General Counsel to be interviewed by the Subcommittee,

but when the Subcommittee found her answers lacking in

several respects, it sent follow-up questions and requests for

information, all of which went unanswered.

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On July 7, 2015, the Subcommittee issued its first

subpoena duces tecum asking Backpage to produce a variety of

documents. Responding through counsel, the company argued

that the subpoena was overbroad and a per se violation of the

First Amendment. Although the Subcommittee offered to

narrow the subpoena, Backpage continued insisting that the

subpoena violated the First Amendment.

Seeking to end the stalemate, the Subcommittee withdrew

the initial subpoena on October 1 and then issued a new one to

Backpage’s CEO, Appellant Carl Ferrer. The new subpoena

sought eight categories of documents, giving Ferrer until

October 23 to respond or “assert any claim of privilege or other

right to withhold” documents in a privilege log. See Subpoena

Duces Tecum of Oct. 1, 2015.

Although Ferrer supplied a handful of documents, he

refused to search for any other responsive material. He gave

three reasons for doing so: the subpoena exceeded the

Subcommittee’s investigative authority, infringed the First

Amendment rights of Backpage and its users, and sought

“[im]pertinent” information. Letter from Steven R. Ross to

Sens. Portman and McCaskill (Oct. 23, 2015).

The Subcommittee rejected Ferrer’s objections, but

extended his deadline to comply until November 12. Ferrer

produced several more documents, repeated his three

objections, and added that he was withholding “[c]ertain

documents . . . on the basis of attorney-client and/or attorney

work product privilege.” Letter from Steven R. Ross to Sens.

Portman and McCaskill (Nov. 13, 2015).

Confronted with Ferrer’s resistance, the Subcommittee

sought authority from the Senate to bring a civil subpoena-

enforcement action under 28 U.S.C. § 1365(a), which gives the

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United States District Court for the District of Columbia

original jurisdiction “over any civil action brought by the

Senate or any authorized . . . subcommittee . . . to enforce . . .

any subp[o]ena or order issued by the Senate or . . .

subcommittee of the Senate to . . . any natural person.” With

the Senate’s unanimous approval, the Subcommittee filed an

enforcement application in district court. Ferrer responded with

the same three objections raised in his October 23 letter—that

the subpoena violated the First Amendment, pursued

impertinent materials, and exceeded the scope of the

Subcommittee’s investigative power.

The District Court granted the Subcommittee’s application

on August 5, 2016, ordering Ferrer to comply with the

subpoena within ten days. Ferrer immediately noticed an

appeal and sought a stay in the district court, our court, and the

Supreme Court, all of which denied his request.

On September 13, the day the Supreme Court denied a

stay, Ferrer produced some 110,000 pages of documents,

moved the district court for an extension to complete

production, and, for the first time in that court, invoked

attorney-client and work-product privileges as to a subset of the

yet-to-be produced documents. Although the district court

granted a short extension, it rejected as untimely Ferrer’s

assertion of privilege. Ferrer again appealed, and this court

denied a stay pending appeal except with respect to the

documents Ferrer claims are privileged.

Ferrer turned over all concededly non-privileged

documents in late November. Some two months later, on

January 10, 2017, the Subcommittee held its last hearing,

issued a final report on sex trafficking (including a lengthy

appendix featuring certain documents Backpage produced),

and closed the investigation. Two weeks later, the

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Subcommittee moved to dismiss this appeal, arguing that these

subsequent events had mooted the case and deprived this court

of jurisdiction.

II.

Article III of the U.S. Constitution requires a controversy

to remain live “at all stages of review.” Decker v. Northwest

Environmental Defense Center, 133 S. Ct. 1326, 1335 (2013).

“For that reason, if an event occurs while a case is pending on

appeal that makes it impossible for the court to grant ‘any

effectual relief whatever’ to a prevailing party, the appeal must

be dismissed” as moot. Church of Scientology of California v.

United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green,

159 U.S. 651, 653 (1895)).

The Subcommittee argues that the case has become moot

because the Subcommittee has “held its hearing, issued its final

report, . . . completed its investigation,” and “no longer seek[s]

to enforce any part of the subpoena.” Subcommittee Mot. to

Dismiss at 3, 12. Ferrer concedes that no controversy remains

as to the privileged documents he withheld, which the

Subcommittee has never received and no longer wants.

Subcommittee Mot. at 12; Oral Arg. Rec. 2:45–3:05.

Nonetheless, he insists, the dispute remains live because the

court may still provide at least some “effectual relief” by

ordering the Subcommittee to return, destroy, or refrain from

further publishing and distributing the documents Ferrer

produced. He also argues that even if the case has become

moot, the dispute satisfies the “capable of repetition yet

evading review” exception to mootness.

A.

In support of his argument that this case remains live

because our court can order the Subcommittee to return or

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destroy the documents, Ferrer relies principally on the Supreme

Court’s decision in Church of Scientology, 506 U.S. at 12. In

that case, the Internal Revenue Service issued an administrative

summons to a state-court clerk directing him to produce tape

recordings of conversations between officials of the Church of

Scientology and their attorneys. Id. at 10. When the IRS filed a

petition to enforce the summons in district court, the Church

intervened to oppose production on the grounds that the tapes

were privileged. Id. at 11. The district court ordered production

of the tapes and the Church appealed, but before the appeal

could be decided, the state-court clerk delivered the tapes to the

IRS, at which point the appellate court dismissed the case as

moot. Id. at 12. The Supreme Court reversed, explaining that

the controversy remained live because “a court . . . h[as] [the]

power to effectuate a partial remedy by ordering the

Government to destroy or return any and all copies it may have

in its possession.” Id. at 13.

According to Ferrer, the same “destroy or return” remedy

is available here. We might agree were his documents held in

the grips of a federal agency. But as the Subcommittee points

out, because it is Congress that holds Ferrer’s documents, he

must contend with the cloak of protection afforded by the

Constitution’s separation of powers, including the Speech or

Debate Clause, which provides that, “for any Speech or Debate

in either House, [Members of Congress] shall not be questioned

in any other Place.” U.S. CONST. art. I, § 6, cl. 1.

Although the Speech or Debate Clause chiefly functions to

immunize Members of Congress from civil or criminal liability

arising from “actions [falling] within the ‘legislative sphere,’”

Doe v. McMillan, 412 U.S. 306, 312 (1973), its protections

extend far more broadly. In Brown & Williamson Tobacco

Corp. v. Williams, 62 F.3d 408 (D.C. Cir. 1995), our court held

that the Clause affords Congress a “privilege to use materials

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in its possession without judicial interference,” even where

unlawful acts facilitated their acquisition. Id. at 416. There, a

paralegal working for a law firm representing Brown &

Williamson stole internal tobacco-related documents and

arranged for their delivery to the House Subcommittee on

Health and the Environment. Id. at 411–12, 422. Suing the

paralegal for breach of contract in state court, the law firm

issued subpoenas to two Congressmen seeking production of

all documents in the Subcommittee’s possession. Id. at 412.

The Members removed the case to federal district court and

filed a motion to quash, arguing that the Speech or Debate

Clause barred the subpoena’s enforcement. Id. The district

court granted the motion, and our court affirmed, holding that

even though the documents had been stolen, “[a] party is no

more entitled to compel congressional testimony—or

production of documents—than it is to sue congressmen.” Id.

at 421. “[E]ven though material comes to a legislative

committee by means that are unlawful or otherwise subject to

judicial inquiry,” we explained, “the subsequent use of the

documents by the committee staff in the course of official

business is privileged legislative activity.” Id. at 417 (quoting

McSurley v. McClellan, 553 F.2d 1277, 1296–97 (D.C. Cir.

1976) (en banc) (per curiam)).

In reaching its decision, Brown & Williamson relied in part

on Hearst v. Black, 87 F.2d 68 (D.C. Cir. 1936), in which our

court held that the separation of powers barred it from

enjoining a Senate committee from “keeping[,] . . . making any

use of[,] . . . or disclosing” the contents of telegraphs a Senate

committee had unlawfully obtained from the Washington

offices of publisher William Randolph Hearst. Id. at 71

(emphasis added). We explained then—and it is just as true

now—that “[w]e know of no case in which it has been held that

a court of equity has authority to do any of these things.” Id. To

circumscribe the committee’s use of material in its physical

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possession would, we emphasized, “destroy[]” the

independence of the Legislature and “invade[]” the

constitutional separation of powers. Id. at 72; accord

McMillan, 412 U.S. 306, 338 n.11 (Blackmun, J., concurring

in part and dissenting in part) (“We have no more authority to

prevent Congress, or a committee . . . [,] from publishing a

document than to prevent them from publishing the

Congressional Record.”) (quoting Methodist Federation for

Social Action v. Eastland, 141 F. Supp. 729, 731 (D.D.C. 1956)

(three-judge court)); Sanders v. McClellan, 463 F.2d 894, 902

(D.C. Cir. 1972) (“The judiciary has the duty of not lightly

interfering with Congress’ exercise of its legitimate powers.”)

(internal quotation marks omitted).

Brown & Williamson and Hearst thus make clear that the

separation of powers, including the Speech or Debate Clause,

bars this court from ordering a congressional committee to

return, destroy, or refrain from publishing the subpoenaed

documents. Because we can provide Ferrer with no “effectual

relief whatever,” Church of Scientology, 506 U.S. at 12, the

case has become moot.

Resisting this conclusion, Ferrer first argues that because

the Subcommittee “enlist[ed] the jurisdiction of the judiciary”

under 28 U.S.C. § 1365, “it subject[ed] itself to that

jurisdiction,” meaning it “cannot . . . assert [that] separation of

powers precludes an adverse judicial resolution.” Appellant’s

Opp. to Appellee’s Mot. to Dismiss (“Opp. Br.”) at 10. We

disagree. Nothing in Section 1365—which gives the district

court “original jurisdiction . . . over any civil action brought by

the Senate or any authorized . . . subcommittee . . . to

enforce . . . any subp[o]ena”—provides that the Senate forfeits

its constitutional protections by seeking judicial enforcement

of a subpoena. Confirming this, the Senate Report

accompanying the statute’s enactment states that “[w]hen

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Congress petitions the court in a subpoena enforcement action,

Congress does not waive its immunity from court interference

with its exercise of its constitutional powers.” S. REP. NO. 95–

170, at 94 (1977) (report accompanying Pub. L. No. 95–521,

92 Stat. 1824); see Mohamad v. Palestinian Authority, 556 U.S.

449, 459 (2012) (“[A]lthough we need not rely on legislative

history given the text’s clarity, we note that the history only

supports our interpretation . . . .”).

Insofar as Ferrer contends that, apart from Section 1365’s

text, the Subcommittee necessarily accepted an implicit

restriction on the Speech or Debate Clause by seeking to enlist

the judiciary’s assistance in enforcing its subpoena, his

argument lacks merit. In ordering compliance with the

Subcommittee’s subpoena, the district court merely aided the

Senate in effectuating its inherent subpoena power. The

Subcommittee did not thereby necessarily invite the courts’

interference with constitutionally protected legislative activity.

Cf. United States v. Helstoski, 442 U.S. 477, 490–91 (1979)

(waiver of congressman’s Speech or Debate Clause immunity,

assuming such waiver is possible, would require “[a]n explicit

and unequivocal renunciation”).

Citing two Supreme Court Speech or Debate Clause

cases—Hutchinson v. Proxmire, 443 U.S. 111 (1979), and

McMillan, 412 U.S. 306—Ferrer next argues that we may

prospectively enjoin the Subcommittee from further

disseminating Backpage’s documents “beyond the legitimate

legislative needs of Congress.” Opp. Br. 11. But Hutchinson

held only that the Speech or Debate Clause could not shield a

Senator from retrospective liability for defamatory statements

made in non-legislative publications. Hutchinson, 443 U.S. at

132–33. And McMillan concluded that the Clause barred an

award of damages and injunctive relief arising from a

congressional committee’s decision to publish materials whose

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distribution was “otherwise actionable under local law,” at

least “insofar as [the complaint] sought relief from . . .

Committee members” and their legislative aides. McMillan,

412 U.S. at 312, 317. Neither case held that courts may

prospectively limit a congressional subcommittee’s lawful use

of documents in the course of a legitimate legislative activity.

To be clear, we take no position on whether courts are

powerless to enjoin individual members—or the committees of

which they are a part—from disseminating investigative

materials whose contents have no relationship to legislative

functions or whose distribution would arguably violate the law.

See Watkins v. United States, 354 U.S. 178, 187 (1957)

(investigative activities “must be related to, and in furtherance

of, a legitimate task of the Congress”). That issue is not before

us. The Subcommittee obtained the documents in service of

legitimate legislative purposes and Ferrer makes no claim that

publishing them is “otherwise actionable” under any law.

B.

This brings us to Ferrer’s alternative claim—that even if

the case has become moot, we may nonetheless entertain the

appeal under the exception to mootness for issues that are

“capable of repetition, yet evading review.” Spencer v. Kemna,

523 U.S. 1, 17 (1998). This exception applies where “(1) the

challenged action [is] in its duration too short to be fully

litigated prior to cessation or expiration, and (2) there [is] a

reasonable expectation that the same complaining party [will]

be subject to the same action again.” Id. (alterations in

original). We have no need to address the first requirement, for

Ferrer clearly fails the second.

A controversy “is capable of repetition” only if “the same

parties will engage in litigation over the same issues in the

future.” Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627,

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633 (D.C. Cir. 2002). “A ‘theoretical possibility,’ . . . is not

sufficient to qualify as ‘capable of repetition’[;] . . . . [t]here

must instead be a ‘reasonable expectation’ or ‘demonstrated

probability’ that the action will recur.” Beethoven.com LLC v.

Librarian of Congress, 394 F.3d 939, 951 (D.C. Cir. 2005)

(quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per

curiam)).

According to Ferrer, “The threat that Backpage.com could

be compelled to produce documents intruding on its editorial

judgment in violation of the First Amendment is easily capable

of repetition.” Opp. Br. 15. For that to happen, however, Ferrer

would have to again have an enforcement action brought

against him for failing to comply with a similar subpoena,

seeking similar documents, and raising similar issues.

Although there is a “theoretical possibility” that this chain of

events might occur, Ferrer gives us no basis for believing that

there is a “reasonable expectation” or “demonstrated

probability” that it will. Murphy, 455 U.S. at 482; see

Pharmachemie, 276 F.3d at 633–34 (where “several

contingencies would have to occur for the same issues to arise

again,” party failed to “demonstrate[] a reasonable likelihood”

of repetition).

Ferrer emphasizes that two members of the Subcommittee

have shown a continued interest in combating sex trafficking

on Backpage.com and on other forums. See Jan. 10, 2017

Hearing Before Senate Permanent Subcommittee on

Investigations, available at https://goo.gl/ot8PiM. Ranking

Minority Member McCaskill stated that she would “do

everything in [her] power to protect young women from being

exploited . . . on Backpage.com or anywhere else.” Id. 35:35–

36:05. And Chairman Portman reiterated that he was

“committed to continuing this effort, not just this one specific

goal of uncovering information that was not previously known

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about Backpage . . . but a broader effort . . . looking at the laws

differently.” Id. 2:23:45–2:24:15. Such statements, however,

hardly establish a “reasonable expectation” that the

Subcommittee, having completed its work and issued its final

report, will nonetheless reopen its investigation and again issue

a subpoena to Ferrer.

III.

Although Ferrer’s challenge to this subpoena-enforcement

order is moot, we emphasize that our decision does not leave

future subpoena recipients without a remedy. As counsel for

the Subcommittee pointed out at oral argument, “if you wish to

appeal an order . . . enforcing a Senate subpoena you stand on

your privilege, you go into contempt.” Oral Arg. Rec. 17:30–

45. For example, in In re Application of U.S. Senate Permanent

Subcommittee on Investigations (Cammisano), 655 F.2d 1232

(D.C. Cir. 1981), a district court enforced a Senate

subcommittee’s subpoena and, when the subpoena’s recipient

refused to comply, entered a separate order of civil contempt.

Id. at 1234–35. As a result, both the district court and this court

addressed his objections on the merits. Although the subpoena

recipient lost, through his disobedience he preserved his right

to appellate review of his objections. By contrast, Ferrer, by

responding to the subpoena, has triggered Congress’s

constitutional protections and thus deprived the courts of

authority “to grant any effectual relief whatever.” Church of

Scientology, 506 U.S. at 12.

Finally, Ferrer asks that we vacate the district court’s

judgments if we dismiss the case as moot. “Courts usually”

exercise their equitable discretion to “vacate a judgment ‘when

mootness results from unilateral action of the party who

prevailed below’ or from circumstances beyond the control of

the parties.” Sands v. NLRB, 825 F.3d 778, 785 (D.C. Cir.

2016) (quoting U.S. Bancorp Mortgage Co. v. Bonner Mall

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Partnership, 513 U.S. 18, 25 (1994)). That is exactly what

happened here. With respect to the documents Ferrer produced

over his First Amendment objection, any dispute was mooted

by operation of the Speech or Debate Clause. And with respect

to the documents Ferrer withheld pursuant to common law

privileges, the Subcommittee mooted the case by issuing its

final report and disclaiming any interest in further enforcing the

subpoena. Given this, and given that the Subcommittee itself

does not oppose vacatur, we vacate the district court’s

judgments and dismiss the case as moot. See Sands, 825 F.3d

at 786 (finding “opposing side’s silence” in the face of a party’s

request for vacatur to “significant[ly]” weigh in favor of

granting the request).

So ordered.